Speaking of Tentatives

One court in which I have an upcoming appearance uses the tentative ruling system. Tentative rulings are a way that the court lets the lawyers and litigants know the judge's tentative take on their motion. In some counties, the court posts the tentative at x time the day before the hearing. Then the lawyers or self-represented litigants have until y time to notify everyone that the losing lawyer or litigant wishes to challenge the tentative. I like better the courts which issue tentative orders the morning of the hearing, or late the evening before the hearing. This type of court lacks the scramble to give notice of intent to argue.

In a court that issues tentative rulings, hearings get a bit more streamlined than in courts without a hearing. Usually, the lawyer or self-represented litigant on the losing end of the tentative goes first, as there is little point for the winning lawyer or litigant to argue the matter given a favorable tentative. Judges vary as to the extent they are willing to change a tentative. Although perhaps all modify their tentative rulings sometimes, some judges seem much more of the "never" persuasion while other judges are more of the "a reasonable amount of the time" persuasion. There probably is some commentary to be made about what difference a few minutes of discussion can make when the lawyers already filed detailed papers laying out their position, but I do not have a quick summary of my views on that.

In years of practice, I've had tentatives in my favor, and tentatives against me. I've "held" tentatives, been "unable to turn tentatives", and been "able to move the tentative". There is a language of tentatives. When a tentative ruling is uncontested or uncontroversial, the lawyers "submit" on the tentative. This means they will not argue to try to change the tentative.

I run into tentative rulings in California rather than in Texas. My recollection is that Dallas County's local rules used to permit tentatives, but I never saw that rule used. A more informal version sometimes happens in Texas. The judge, who has often "worked up the papers", sometimes (but not often) tells the lawyers what she or he is thinking. Then it's a bit similar to tentative practice.

This week I checked a website for a Superior Court in California to see when the Court posted its tentatives. I found myself reading a few tentatives pertaining to other cases. These offer a tiny microcosm into the drama, melodrama or lack of melodrama of other folks' controversies. X person sues Y person alleging that Y took advantage of her elderly relative Z. John Q. Public sues that the car sold by Acme Motors had undisclosed defects known to Acme Motors. The City of Perfect Utopia laid off Joe Civic Employee, and it's either a horrible violation of civil rights or a routine discharge of a sub-standard and insubordinate employee. Tentative orders are often quite well-written--little essays on applying the law to a particular matter. In one matter, the court determines if a particular question in case preparation (an "interrogatory") is to be answered or too intrusive. In another matter, the court considers via a "motion for summary judgment" whether even if plaintiff's affidavit of what plaintiff can prove is true, is there enough to prove a case in light of indisputable facts defendant can prove. The tentatives are interesting reading if one but knows what they mean.

I like tentative orders because they live in a world of transparent, orderly decision-making. Unlike an oral hearing, in which one is never entirely sure what some judge are thinking, tentatives lay out the court's reasoning. It's daunting, of course, if one goes into a hearing facing a deeply unfavorable tentative. But at least it's no mystery.

In life, many folks have friends or family or romantic interests who practice a rather less reasoned and orderly tentative ruling practice. That can have its advantages and disadvantages in real life, without the Rules of Civil Procedure and the possibility of effective appeal to a higher authority. Unlike in court, a personal "tentative ruling" lacks the proper analysis of the facts that makes tentative orders useful. Folks make the darnedest snap rulings. It's often as difficult to shift someone off their tentative as it is to shift the most earnest yet firm judge.

I am not so certain I want tentative decisions conveyed to me in every sphere of life. But they work pretty well in court. Shifting an adverse tentative order takes some subtle, polite and persuasive work. It is meaningful and understandable work. I think with chagrin of an adverse tentative ruling I could not shift a little under two decades ago. It still smarts a bit. I think of another more recently that I shifted in a minor but important way, which made me happy. Mostly, I get the tentative when the court offers one, and do my job accordingly.

I've dealt with a lot of tentative orders over the years. Perhaps I'll get to deal with a goodish few more. It's an interesting process---pick up the ruling, the landscape changes, and then either struggle to overcome one, or prepare to reply to try to hold one.